To listen to the critics of the decision to try Khalid Sheikh Mohammed and some of his 9/11 confederates in open court, the central problem with federal criminal law is that there just isn't enough of it. And so we hear that the KSM prosecution will degenerate into a "circus" and a "show trial," as if hundreds of terrorists have not already been tried and convicted in U.S. civilian courts, including the 1993 World Trade Center and African embassy bombers.
We hear of the dire security risks of allowing classified information to pour forth unchecked from federal courthouses, as though there are no judicial mechanisms to safeguard such information. We hear, most recently from former vice president Dick Cheney, how perilous it will be to allow these men to spew propaganda at their trials, as if judges lack the legal power to silence a defendant. We hear that our prisons cannot even contain these men, as though our prisons don't already hold precisely such men. And we hear about unprincipled defense attorneys and legal loopholes—all this from critics who would have you believe that no terrorist has ever been tried and convicted in America, because the criminal-justice system is as fragile and tenuous as a newborn calf.
This complaint would be far more persuasive were it not for the fact that these same people rooted the original legal framework for the "Global War on Terror" in the contention that there was actually too much law in America, not too little. In the wake of 9/11, Bush lawyers claimed to have been so choked and oppressed by a web of vague, complicated, and conflicting new laws criminalizing warfare, they could barely move. Indeed, former Bush lawyer John Yoo, now facing a lawsuit for his role in crafting the system of detainee abuse, has written that it is laws and lawsuits that threaten to make America less safe. Yoo has warned that the current culture of "lawfare" will result in "a government that will avoid any and all risks, shun making any move that is not an exact repetition of locked-in procedure of 20th-century vintage, and keep plodding along the same path regardless of contemporary circumstances."
To be clear, then, evidently it was too much law that got us into the war on -terror, and now there's too little law to get us out of it. Apparently, one cannot operate within a legal framework in wartime because the laws are too constraining and vague. Yet using an unambiguous -criminal-justice system to try the 9/11 terrorists after the fact is dangerous because the system is untested and untrustworthy. The conclusion is almost inescapable: the real danger facing America is the law. It's always either too outdated or it's too untested; it's too ambiguous or too rigid; too forward--facing or too past-focused. The legal system is too hard on patriotic Americans and too soft on our sworn enemies.
This brings us to the much-awaited report from the Justice Department's internal-ethics branch, the Office of Professional Responsibility, on the quality of the legal memos produced by the Office of Legal Counsel. Attorney General Eric Holder promised last month that the report would be released by the close of November. That deadline has come and gone. The document has been massaged, fondled, and loofahed for many months now, but it nevertheless promises to shine a light on the legal reasoning that supported torture and other innovations in the war on terror. This report will be a watershed not just because it will explore failures in legal methodology and legal reasoning—among other things, Yoo's torture memos failed to cite legal precedent. At bottom, the important question here won't be Cheney's fatuous inquiry into whether or not torture "works." It will determine whether or not the law works.
It is one thing to say, as former attorney general Michael Mukasey has done, that the law is immutable and human error is the problem—explaining as he has that Bush lawyers were under "almost unimaginable pressure" after 9/11 and offered "their best judgment of what the law required." It is quite another to insist, as does Yoo, that the law itself is the problem, not the solution.
This country is built on a belief in the system of laws. But what we have seen since 9/11 is a slow erosion in the certainty that it's a system worth defending. Whether it takes the form of the forthcoming OPR report or the New York terror trials themselves, the American justice system is past due for a vindication. And that's not because America needs a witch hunt or a show trial to get beyond 9/11. It's because without rehabilitating the notion of the rule of law, there is nothing to move forward toward.